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ARUNA CHAKRAVORTY
AUGUST 8: Is an intra-court appeal within the walls of the Bombay High Court possible especially in matters concerning the contentious Bombay Rent Act? A judgement regarding this, which is expected to have far reaching effects in landlord-tenant disputes, is due this week, with a division bench of Justice A V Sawant and Justice R J Kochar reserving their orders after hearing the parties extensively for two continuous days last week.
For many years now, landlord or tenant litigants in the state of Maharashtra have opted not to go in appeal before a division bench, against an order passed by a single judge of the Bombay High Court itself. The preferred option was to appeal to the Supreme Court directly. This was helped by the fact that the law that allowed such intra-court appeals, the Letters Patent Appeal (LPA) Act, 1868 was abolished by the state government through the LPA Abolition Act, 1987. The action though was challenged and stayed by the high court since it was questionable if such an importantaspect of law could be abolished by a simple state legislation.
The matter that came up for a detailed hearing by the division bench of Justice Sawant pertains to a case that had gone all the way to the Supreme Court, which remanded it back to the high court to be disposed of within two months.
Balkrishna G Sulakhe had first filed a suit against his tenant, Madhukar Mohite in Solapur, in 1987 seeking possession of his tenement claiming default in payment of rent as well as the construction of permanent, unauthorised structures. The trial court that heard the matter rejected the accusations of permanent structures, but accepted the default claim and in an order of 1995 decreed that the tenant hand over the premises to the landlord.
The tenant appealed to the district court of Solapur, which confirmed the trial court's orders and dismissed his appeal in 1996. Mohite then filed a petition approaching the Bombay High Court, where a single judge bench of Justice D K Deshmukh, in 1997 again dismissed thepetition. He however filed an LPA against the single judge's order, in the Bombay High Court itself, and his appeal was admitted by the division bench of the then Chief Justice M B Shah. Advocate Ashutosh Kumbhakoni who appeared on behalf of the landlord, had opposed the admission of the appeal claiming that the LPA was not maintainable.
The case was then taken to the Supreme Court, in an appeal against the admission of the LPA. Accepting that prima facie, the matter involved a crucial point of law, the SC remanded the case back to the high court requesting that it be disposed of in two months in February 1999.
While right to appeals are excluded in certain categories specifically through a statute, an intra-court appeal under Clause 15 of the LPA Act, arising out of the proceedings of the Bombay Rent Act is not specifically barred. However, it can go for an LPA, only if it is proved that the powers exercised by the single judge of the high court, falls under Article 226 (arising out of originaljurisdiction) and not under Article 227 (supervisory, over lower court orders).
The bone of contention therefore is whether the orders of the single judge are those under Article 226 or Article 227. Advocate Kumbhakoni argued that since the petitions were almost always against the lower court's orders, the high court judge was essentially being asked to look into the lower court's orders, and this would be only under Article 227.
However, advocate A V Anturkar, who argued on behalf of some tenant intervenors, contended that not all lower court orders needed to be challenged under Article 227. He stated that it was a settled practice where litigants approached the HC seeking a writ of certiorari (seeking to set aside a lower court's order) under Article 226. Since a writ of certiorari was expressly mentioned in Article 226, it was proved that Article 226 can be used against lower courts and tribunal orders as well.
He also exemplified that if a Rent Act matter had been passed by the lower courts withoutrecording any finding, the order would not only be wrong, it would also be going to the root of the jurisdiction. In this case, invoking Article 226 would be justified.
Copyright © 1999 Indian Express Newspapers (Bombay) Ltd.
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